Thursday, February 18, 2021

Why Can't Nevada Just Replicate New Hampshire's Calendar Strategy?

What's so complicated? 

That was the question that FHQ got in response to our recent rundown of the problems inherent in the Nevada bill introduced this week to challenge New Hampshire's (and Iowa's) entrenched primacy at the front of the queue on the presidential primary calendar.

And it is not an unreasonable proposition: amend the currently flawed bill that schedules the would-be newly established Nevada presidential primary for the next to last Tuesday in January, leaving the state vulnerable to a New Hampshire leapfrog with no recourse for the Silver state. That is indeed a simple addendum. And while it replicates part of the mechanism that New Hampshire has utilized with success over the years to protect its first in the nation status, it leaves in this case some unanswered questions in the Nevada context.

Let's assume for a moment that Nevada lawmakers do, in fact, amend AB 126, adding a provision like New Hampshire's that requires the Silver state presidential primary to be seven days before any other similar contest. Who or what makes that happen? Who implements that provision? In New Hampshire, that decision has been left to the discretion of the secretary of state since 1976. And Bill Gardner, the secretary of state in the Granite state during the whole interim period has proven adept at waiting other states out and then scheduling the state's presidential primary. That one person has that decision-making authority (and has protected New Hampshire's first-in-the-nation status so successfully time after time) is no small thing. As I discussed in my dissertation research, states may have the willingness to move a primary (or in this case challenge for first-in-the-nation status), but do they have the ability. New Hampshire has with its system. Nevada may if the legislature cedes the date-setting authority to its secretary of state. 

The state legislative route has proven a less fruitful path throughout the post-reform era. If the Nevada legislature retained the authority to set the date then it might run the risk in 2023 -- after a 2022 midterm election, for example -- of getting bogged down in a partisan clash over calendar positioning. That could even occur within any Democratic majority that may survive the midterms intact. And furthermore, it could be constrained by the time in which the legislature is in session. This is why states like Georgia and Colorado moved to empower their secretary of state or governor, respectively, to make the decision on where on the calendar the states' presidential primaries will be scheduled. 

So that question presents one complicating factor. 

Note that the above only considers an interstate conflict between Nevada and New Hampshire; one that includes both state governments and state parties as stakeholders. But those are not the exclusive stakeholders in the "who goes first?" conundrum. The national parties also have some say in this. And sure, folks in the Granite state will argue that no matter what the national parties dictate, New Hampshire is going to follow state law and set its primary -- compliant with national party rules or not -- at the beginning of the calendar. That has worked in the past even before the time in which the Iowa and New Hampshire were codified into the national parties' rules. New Hampshire would basically blackmail candidates, daring them to campaign in other rogue states encroaching on New Hampshire's position. Prospectively being dead in New Hampshire at the outset of a long and arduous campaign through a three to five month calendar of contests was enough to keep most candidates in line and protect New Hampshire. 

But times and conditions have changed. The national parties have only gotten more hands-on in their approach to the nominating process as it has increasingly nationalized and pushed more meaningfully into the invisible primary. New Hampshire may also dare the national parties to sanction them, but there really has not been a valid test of the hypothesis that New Hampshire has those national party penalties levied against the state. We do not know how candidates would react to that, especially in the context of a disputed claim to first-in-the-nation status. 

And Nevada may be in the process of laying a claim to that status. However, it is a somewhat ham-handed attempt. And would be even with a provision added to mimic the "seven days before any other similar contest" line in the New Hampshire law. FHQ says this because the bill is clearly intended as a provocation:
“It would not be ideal to just have a back-and-forth and just have a leapfrog exercise,” he [Nevada Assembly Speaker Jason Frierson (D)] said, “so the hope is that we can coordinate with the national party as well as our states, and work something out.” Frierson said he “certainly [is] not trying to start some dispute between states,” adding that “this is the beginning of the conversation.”
It is not clear that this starting point to the conversation is one that the Democratic National Committee endorses. Yes, the national party may want a change at the beginning of the calendar to demographically diversify the kickoff event so that it better aligns with the Democratic primary electorate, but it may want a more deft handling of the approach than the shot across the bow that Nevada has offered to this point. 

As an aside, I can still hear members of the DNC complaining about both Democratic legislators in Florida who voted for the bill to move the Sunshine state presidential primary into January for 2008 and even more about how "whiny" the state party was when the DNC sanctioned them and offered to help organize later caucuses that would be compliant. And those comments were four years later. 

By provoking a clash, Nevada Democrats in the state party and the state legislature may be inviting the ire of the DNC in a way that ultimately gets both Nevada and New Hampshire penalized and another state elevated to the first primary position (whether either state has a "seven days before any other similar contest" provision or not).

And it is not that Nevada has this completely wrong. The impulse to shift from a caucus to a primary is a shrewd one, one that potentially brings the state into the good graces of the national party at a time when the DNC seems more inclined than at almost any other point in the post-reform era make a change to the start of the calendar. But by predetermining the primary date and opening up a conflict with New Hampshire and breaking the unwritten compact between the carve-out states, Nevada may dash its own hopes before it even gives itself a chance to be considered for the top honor. 

The better approach is to switch to a primary and leave the date unsettled for now. [That is not unprecedented. Utah funded its new 2020 presidential primary in 2018 but did not set the date until 2019. But, of course, Utah did not do that as a means of making a claim on the first-in-the-nation primary.] That puts Nevada in a prime position to pitch itself to the DNC as a possible alternative to New Hampshire (and/or Iowa) before the national party finalizes its delegate selection rules next year. "Ready, willing, able and more diverse" is a better pitch than "Here we are. Deal with our provocation."

In the end, adding a replicating passage from New Hampshire law may get the ball rolling for Nevada, but there are other complications to consider. And they are complexities that involve other stakeholders in the process. And it is those stakeholders that make this a more delicate dance for Nevada than is often appreciated.

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